To: Ms. Christine Varney, Assistant Attorney General
Antitrust Division, Department of Justice
antitrust.atr@usdoj.gov
Date: July 3, 2009
From: Daniel Brandt, Public Information Research

Dear Ms. Christine Varney:

My name is Daniel Brandt, and I run two anti-Google websites. I've been following Google's book-scanning project since 2005. There are documents relating to this at: http://www.google-watch.org/modify.html.

I am president of Public Information Research, a nonprofit, and was the first Google critic, beginning in late 2000. The google-watch.org site was started in 2002.

My interest in Google's library project stems partly from my belief that the University of Michigan acted improperly when it agreed to let Google scan copyrighted works from its library. In my opinion, the "library exception" language of Section 108 in U.S. copyright law does not support the University's position, and neither do the "fair use" provisions of Section 107.

UMich knew full well that Google planned to monetize the library project when it signed the agreement with Google in 2004. This is proven by a document UMich librarian John Wilkin prepared on December 13, 2004. It shows a projected results page from a Google search that produced an in-copyright book. It includes "Sponsored Links" (ads) on the page. This document was available on the UMich library website.

I fear that your Division's interest in the Google Settlement may be overlooking the role that Google's deep pockets played in enticing various public and private libraries to grant access to in-copyright collections.

I obtained confidential agreements between Google and three public university libraries, by using state freedom of information laws. They are the University of Michigan, the University of California at Berkeley, and the University of Texas at Austin. In each of these, Google indemnifies the university against any legal claims that may result from the fact that the university is handing over copyrighted material for scanning by Google. Since Google has a monetary interest in acquiring access to this material, the question of whether this might be a violation of U.S. copyright law was presumably foremost in the minds of university officials.

Google needed billions of dollars in the bank in order to convince universities that its indemnification of them against legal claims is worth the paper it's written on. This is one major uncompetitive characteristic of Google's book scanning project that is not discussed among those who criticize the Settlement. That's because no universities were targeted in the lawsuits filed by the authors and publishers.

Nevertheless, this is where Google's book-scanning arrogance began. Alumnus Larry Page's initial outreach to the University of Michigan ought to be investigated by the Justice Department. UMich was very tight-lipped about all of this when I made inquiries in 2005, and I don't think it was because of the nondisclosure language in the Google agreement. I suspect it had more to do with Mr. Page's deep pockets as co-founder of Google, Inc.

The University of Michigan should be served with a civil investigative demand by the Justice Department. I suspect that the Settlement judge doesn't have the motivation or jurisdiction to look at Google and the universities. But in my opinion, the DoJ's antitrust division has the necessary jurisdiction, as well as the obligation, to do this.

Regards,
Daniel Brandt